Friday, July 25, 2003

What should a judge do if he or she can prevent the slaughter of millions?

Recognizing that books can be (and have been) written about the moral/legal topics involved in this post -- and that a little blog post can only skim the surface -- let me say this:

If I were ever given a judgeship (ha ha, no way), you can be assured of this: that if I had a chance to make a ruling that would prevent the slaughter of millions of innocents, I would do it. Even if I had to fudge the precedents a bit, and even if I realized that I was basing my decision in large part on my own preferences, I would do it. I would prevent the slaughter of millions of innocents, if I could. Wouldn't you? And if I thought that the institutional role of "judge" required me to make a ruling that allowed the slaughter of millions, then I wouldn't be a judge. I would resign in protest -- and would, in fact, refuse the judgeship in the first place, if I foresaw this possibility. Wouldn't you? [UPDATE: The classic questions in this regard tend to be phrased in terms of judges in Hitler's Germany, and 19th century U.S. judges dealing with fugitive slave issues. Think about those examples before saying that you would elevate "the rule of law" above all other considerations.]

And we are supposed to believe that Bill Pryor -- who (according to himself and to his mentor Sen. Sessions) believes that abortion is the slaughter of millions of innocents -- wouldn't fudge the precedents a bit, or otherwise stretch the boundaries of the law whenever he could, to prevent such slaughter? I just don't buy it, given his demonstrated willingness to stretch the law to reach towards the results he favors in even less monumental contexts.*

Does this mean that I think that people who believe that abortion is the slaughter of innocent millions are ipso facto incapable of being "good judges"? No. It means that -- at least when we're talking about somebody with a track-record of bending legal principles to his own liking -- I predict that such person would in fact fudge the applicable precedents whenever he could, on the issue of abortion. And nobody owes anyone else an apology for making such a prediction, or for taking it into account when deciding as a political matter whether he or she supports or opposes the nomination. This is true, no matter what (religion, science, parental influence, you name it) impels the nominee towards the belief that abortion is the slaughter of innocent millions.

*(In this vein, I will also mention one thing that Pryor's defenders often cite: the fact that he gave a narrowing construction to an Alabama anti-abortion law, to bring it more in line with existing Supreme Court precedent. This is, to me, no proof that he set aside his own beliefs and preferences. It is, instead, precisely what a person would have done, had he (a) held the powers and authority of Attorney General, and (b) been determined to do whatever was in his power to reduce the "slaughter". The law, given a narrowing construction, prohibited some abortions; had he not narrowed it, it would have been struck down and would have prohibited no abortions. So I am completely unconvinced by this assertion that he set aside his preferences, in that episode.)

UPDATE: Thanks to Juan Non-Volokh for paying attention to this post, even if he disagrees with my assertion that Bill Pryor has a track record of fudging precedents and bending legal principles to his own liking. For prior explanations and support for my assertion in this regard, you might perhaps look to my posts on Pryor and Bush v. Gore and Pryor and Hope v. Pelzer

Wednesday, July 23, 2003

got an Apple computer, and love music?

Got an Apple computer? Love music? Then you need Clutter, a freeware thingy that sees what you're playing in iTunes, and gets the album cover for you from Amazon -- and allows you to cover your desktop with album covers, and then when you say to yourself, "you know, that album cover reminds me, I'd love to listen to King Bennie Nawahi right now," you can click on the album cover and it starts up iTunes for you and there you go.

Monday, July 21, 2003

the future of Ignatz

So it was a year ago yesterday, or today, or something like that, that I started this silly blog. I am much older and wiser now. And I find myself with a decreased desire to spout off, at least for a few weeks. This does not constitute a true "hiatus", which seems to be the accepted term in blogtopia, because I reserve the right to spout off on whatever sporadic basis I feel like, in between now and whatever future time I decide to become a full-time spout-offer again.

What I would like to ask you to do, if you care to, is to set your RSS reader, or whatever other sort of aggregator you've got, to check Ignatz for you periodically. That way, I won't have the feeling that I've got to pretend that I've got something worth saying when I really don't, just to keep you in the habit of checking. And, if I ever do have something worth posting, your aggregator will tell you that Ignatz has returned. You may find, in a few weeks or months, that I have joined a group blog, which might well be the right answer for a part-time spouter.

Because this is not a blog goodbye, there is no occasion for musing on the nature of things, or for a list of all the people whom I would like to thank. Thanks. Sam

This morning, Ed Still offers a detailed and reasonable hypothesis as to why Bill Pryor and his defenders are trying to avoid scrutiny of RAGA fundraising -- a hypothesis under which Pryor would have been violating Alabama law, and indeed his own officially-stated interpretation of Alabama law. This clearly warrants a serious investigation, without artificially short time limits.

If you're coming to read stuff about Bill Pryor (a recurring topic on this blog, since his nomination was first floated in January), please poke around in the archives for my thoughts. You can be assured that, despite what many of his supporters may tell you, the opposition to his nomination is NOT anti-religious or anything of the sort. Please check out the archives here; if your time is short, maybe start here. That April archive page has a lot of the most detailed stuff that I've written. Thanks.

[update: Really. Go try to send them a webmail. Go to whitehouse.gov, figure out how to get to the webmail page (it's not prominent!), see if you can get a connection (it was very hard for me, this morning), then navigate your way through the forms. Don't forget to declare yourself Mr. or Ms. or whatever -- you will be chided in red letters, and will (if you're like me) say "forget it." Along the way, note the oddly selective choices for subject matter.]

Thursday, July 17, 2003

Bill Pryor

As you may know, the Judiciary Committee had a fight this morning over whether to proceed to a vote on the nomination, or whether to take more time to investigate the newly-obtained documents about RAGA fundraising. That fight is, I believe, unresolved at this point -- but from the sounds of it this morning, I expect Senator Hatch to ram this through to a vote this evening.

If so, then the time will have come to contact all Senators, not just those on the Committee, if you (a) care to do so, and (b) haven't done so already. You can see that a very large coalition of environmental groups -- so I am told, the largest coalition of national environmental and planning groups, and the largest-ever coalition of local grassroots environmental organizations, ever to oppose any of President Bush's judicial nominees -- has prepared a letter to all Senators about this nomination. The letter can be downloaded in pdf format from Earthjustice here.

My last 11th Circuit argument was on the same day as, with the same panel as, the Alabama Ten Commandments case.

And my luck holds: I just found out that my next 11th Circuit argument, in September, will be on the same day as (and presumably with the same panel as) the Alabama vibrator law case! That should be a great argument to see. Here, for vibrator law afficionados, is the Circuit's decision the first time around. The District Court has once again held the law unconstitutional, and Attorney General Pryor has appealed again. It will be, among other things, an interesting test of the impact of the Supreme Court's recent decision in Lawrence v. Texas.

Today is the day for Pryor's vote in the Judiciary Committee. Word is that Sen. Specter will demonstrate his lack of moderateness and will vote in favor the nomination, giving rise to a pure party-line vote, and that then there will be a filibuster.

Note this post from Balasubramania's Mania, demonstrating that even if Pryor's actions in litigation and speeches aren't enough to win your opposition, his high-level involvement with the Republican Attorney Generals' Association could be. The post links to this article from the Wash. Post, which ought to mark the beginning of serious investigations (both public and private) into the fundraising of that organization (which Pryor helped to found). Here's how it starts:

Republican state attorneys general in at least six states telephoned corporations or trade groups subject to lawsuits or regulations by their state governments to solicit hundreds of thousands of dollars in political contributions, according to internal fundraising documents obtained by The Washington Post.

One of the documents mentions potential state actions against health maintenance organizations and suggests the attorneys general should "start targeting the HMO's" for fundraising. It also cites a news article about consolidation and regulation of insurance firms and states that "this would be a natural area for us to focus on raising money."

According to the Bham News, Democrats will request a delay in the Committee vote in order to look into this further; but I'm not holding my breath for Sen. Hatch to say "that's fair!"

[UPDATE: Via Ed Still's Votelaw, you can find a link to Nina Totenberg's informative coverage of the RAGA fundraising issue, including her discussion of the leak by Senate Republican staff to a friendly pro-Pryor writer in an effort to preempt any investigation of the issue. In fact, Ed at Votelaw was writing about RAGA fundraising and Bill Pryor six months ago, which just goes to show that everybody should be reading Votelaw.]

Tuesday, July 15, 2003

Bill Pryor

Leah, one of the summer team at Atrios's site, has this reminder that Bill Pryor's committee vote has now been set for Thursday (two days from now), and that there is still some question as to how Sen. Specter will vote; Leah also gives you various ways to make your opinions known to the Senators.

I doubt very much that Sen. Specter would vote against the nomination in such a way as to kill it in committee; but it is possible that he will vote only to let it go to the Senate floor without a recommendation. Those of you with voting rights in Maine and other states with Republican Senators who style themselves "moderate", in particular, should make your voices heard. If the Republicans think that they might lose a floor vote, then they will be likely to let the nomination languish (as they are currently doing with the fellow who's been nominated to the District Court in Arkansas).

Good thing those guys at The Corner are on the alert -- they've discovered that the purportedly boring and purportedly neutral C-SPAN is actually in the thrall of the homosexual agenda! Look here:

YES, REALLY, C-SPAN BIASThe only guest on C-SPAN's "Washington Journal" this morning was Elizabeth Birch, , head of the Human Rights Campaign, the hard gay-left group now pressing all the Democratic candidates to support what proponents call "gay marriage." No debate. First question: "Do you think that President Bush has been detrimental to gays and lesbians?" So much for balance.
[remainder of The Corner item, not having anything to do with C-SPAN, omitted]

Horrifying -- that C-SPAN had Ms. Birch on without a right-winger to debate her!. Bias? No doubt. You can tell, because, it's been a long long time -- 2 days, in fact -- since they had a right-winger on, to push the right-wing "religious" viewpoint on political debates, without anyone to debate her from the left. (Note: and Birch got forty eight minutes, while the right-winger only got forty three).

And how dare the biased C-SPAN journalist ask a question that was based on the possibility that the head of the HRC might believe that the Bush Administration has been detrimental to gays and lesbians?!

Monday, July 14, 2003

what to blog about?

This is the final week before my one-year blogiversary, at which time I will decide whether to shut old Ignatz down (as previously hinted without much subtlety) or instead to go to a reduced-blogging mode. And as I think about whether to blog, what better thing to blog about than blogging? And so, naturally, my thoughts turn in part to the question, "Do I really want to be part of a cultural activity in which the most widely-applauded guy is so transparently lame? If that's what blogging's about, shouldn't I spend the time practicing the banjo instead?"

That's where my mind was this morning, in particular, on reading this item from the Instapundit, which reads in full "SPEED LIMITS KILL, according to this piece in the New York Times." Fits right in with that particular brand of libertarianism that is so in vogue in the blogworld these days, right? There's only one little problem: the linked article says exactly the opposite. It says, plain as day:

according to a recent academic study, raising speed limits to 70 miles per hour, and even higher, has no effect whatsoever on the death rates of young and middle-aged male drivers. That's right, guys: if you're under 65 and you find yourself cruising the great wasteland somewhere between Denver and Portland, say, you can rev things up with a clear conscience -- soon maybe even in Oregon, whose Legislature is considering upping its maximum speed limit from a poky, painful 65 to a brisk and wholesome 70.

Like most studies that seem to grant us leave to indulge our lazy, bad habits, this one comes with an asterisk, unfortunately, that it would be cruel not to disclose (despite the fact that as a young male Westerner I'd love to bury the finding in a footnote): higher speed limits do increase the death rates of women and the elderly.

. There is literally no sentence in the article that says anything like "SPEED LIMITS KILL," or even (less colorfully) that death rates are lower if speed limits are higher. As quoted above, the article says exactly the opposite.

Wednesday, July 09, 2003

Bill Pryor

Just in time for tomorrow's Senate Judiciary Committee vote on Bill Pryor's nomination, comes a Washington Times op-ed by noted right-wing lawyer Bruce Fein, about Alabama's Ten Commandments battle. What does it have to do with Bill Pryor's nomination? It is that Fein lambastes the many Republicans who have remained silent and failed to criticize Ala. Chief Justice Moore's position in that litigation.

The chief justice of the Alabama Supreme Court, Roy S. Moore, has forgotten that Robert E. Lee surrendered to U.S. Grant at Appomattox Court House, not vice versa. Admired by some political conservatives, Justice Moore denies the constitutional authority of federal courts to issue rulings interpreting the establishment clause of the First Amendment that he is bound to obey.
That the Alabama chief justice revels in seeking to unravel the rule of law shocks. And what multiplies the shock is the deafening Republican silence over Justice Moore's rebellion against the Constitution despite their characteristic celebration of law and order.

Though Fein doesn't mention it, among the Republicans who have remained publicly silent on the point -- and the Republican who by all rights should have been the most vocal on it -- is Bill Pryor, Alabama's Attorney General. Pryor's official website still includes no mention of the 11th Circuit's decision, many days after the issuance of that decision. And he has not publicly decried the intimations by Chief Justice Moore that Moore might not obey the 11th Circuit's mandate. Instead, Pryor has (according to the Mobile newspaper -- scroll down to last item) hid behind some patently absurd assertion that he shouldn't discuss the case because it might yet go to the Supreme Court. If there is any chance that any Republicans on the Judiciary Committee plan to do anything other than blind adherence to party politics, they should consider Pryor's silence in light of Fein's essay.

Tuesday, July 08, 2003

This here post is for the law nerds mostly.

One of the things that really gets me grumpy is when defendants, in lawsuits filed in state court, wrongly "remove" the cases to federal court in order to (a) get a friendlier forum or (b) at least slow down the lawsuit by trying. We had a good example, recently, of how ridiculous this can get. Here's the deal.

One of the bases for federal court jurisdiction -- and therefore one of the bases for removal of a case from state to federal court -- is "diversity of citizenship", which exists (under currently-governing statutes) when all the plaintiffs live in different states from all the defendants, and the amount of money at stake exceeds a certain statutorily-set minimum. So, a case where the plaintiffs are from Alabama, and some (but not all) of the defendants are from Alabama, is NOT removable on the basis of "diversity". Got it?

Ok, there's one tiny exception, which is when the "non-diverse defendants" (the Alabama-based defendants, in our example) are listed in the Complaint BUT THERE'S NOT EVEN A CONCEIVABLY, NOT EVEN ARGUABLY, LEGITIMATE CLAIM against them. This is called "fraudulent joinder". Naturally -- being self-interested like just about everybody else -- companies that are sued in state courts try to stretch this tiny little exception into a humongous exception. Natural. The problem is that some federal district courts let the companies get away with this grotesque expansion of "fraudulent joinder", and let cases into federal court that should have stayed in state court.

Take, for instance, Tillman v. R.J. Reynolds. There, an Alabama smoker had filed suit in 1998, against R.J. Reynolds and some Alabama defendants who had sold some of the cigarettes. No diversity, right? Shouldn't be removable to federal court, right? But R.J. Reynolds argued, and the district court agreed, that the retailers were "fraudulently joined" because there was no possible arguable conceivable claim against them -- that any argument for such a claim was completely baseless. Three years later, the Eleventh Circuit wasn't sure that this was right, so -- in the opinion I just linked -- the Circuit asked the Alabama Supreme Court whether there was any claim against the retailers. And last month, the Alabama Supreme Court said "yes, there's a potentially valid claim against the retailers." So all that time -- for about 5 years -- the federal courts delayed the case, when they should have just refused to hear it and let the state courts decide it. The federal courts countenanced that delay, by giving credence to Reynolds's argument that there was OBVIOUSLY no claim against the retailers; but in fact (as the Ala. S.Ct. recognized), not only was that NON-OBVIOUS, it was just WRONG.

Friday, July 04, 2003

Thursday, July 03, 2003

On the Bush Administration's efforts to take away millions of workers' rights to overtime pay (first discussed at Ignatz many months ago, here), read these articles by Bob Herbert and the AFL-CIO.

I see this as another example of the Administration's overconfidence and resulting meltdown. It's one thing to press right-wing policies that hurt average citizens indirectly, or will hurt them in the future; it's quite another, and politically dumber, thing to press policies that will directly and immediately cause millions of households financial distress and overwork.

[UPDATE: Ross at The Bloviator has a different take on the politics of the proposed change. Check it out.]

Wednesday, July 02, 2003

After Lawrence v. Texas, we are seeing a new outpouring of assertions, especially by "conservatives," to the effect that everybody (sometimes, it is said, especially "liberals") tries to enshrine all of his or her policy preferences as constitutional doctrine, and that Lawrence is an exemplification of that purported fact. For instance, in response to Justice Thomas's opinion stating that he's against sodomy laws as a matter of policy but believes that the Constitution permits them anyway, Stuart Buck says

Once again, Justice Thomas shows that he, perhaps more often than any other Justice, is willing to distinguish between his own political preferences and what the Constitution actually says. And judging from the outpouring of commentary that I've read in the past day, he may be one of only a handful of people in America who are capable of making such a distinction.

But really, everyone in America is capable of making that distinction, I think, and everyone who thinks at all about constitutional law makes the distinction easily. Here are some examples, for myself.

(1) I would prefer that the federal labor laws provided that an employer had to recognize a union if a majority of employees signed authorization cards. But I recognize that the Constitution does not so provide; winning that right is a matter of legislation, or of interpreting existing legislation. I could come up with many more examples, and I have no doubt that you could, too.

(2) Some (e.g. Stuart Buck) might say, that's too easy -- it's easy to think of laws you might like to enact that are not constitutionally required, but try to admit that there's a law that you oppose but that is nonetheless constitutional. That's easy too. Just off the top of my head, here's an example: I don't think that lawsuits ought to be removable from state court to federal court on the grounds of diversity of citizenship, and I don't like the fact that 28 U.S.C. § 1441 allows such removal. But I recognize that the law passes constitutional muster. Again, I could come up with more examples, and I have no doubt that you could too.

In other words, there's nothing honorable about Justice Thomas's position in Lawrence. We all are satisfied to leave most things to the legislative process, rather than to constitutional doctrine. We just disagree on the content of constitutional doctrine. Fortunately, Justice Thomas's ultra-crabbed view of the Constitution is not the prevailing view.

I know I keep saying it, but it's worth saying again. If you live in Washington, don't miss the Smithsonian Folklife Festival, which (having started last week) is on again, today through Sunday. Here is the schedule for today, and you can click from there to the schedules for later this week. Today you can see some great Southern traditional music, including Joe Thompson and Clyde Davenport, and can also see an evening concert of Neba Solo, my new favorite: a balofon (like a wooden xylophone, or marimba) player from Mali. He and his band (2 balofons, a drummer, three other percussionists, a singer, and two dancers, when I saw him last week) will rock your world.

[UPDATE: A reader reasonably points out that I have been unfairly neglecting the Scottish music. Fair enough -- though my own view is that British Isles trad music has much better publicists than does old-time music and thus gets an inordinately large share of attention in many venues, I will readily admit that this week also brings some great Scottish music, including Johnny & Phil Cunningham, and the Battlefield Band.]

Tuesday, July 01, 2003

Can it be true? Have I beat Howard Bashman to the scoop?

Looks like the Eleventh Circuit correctly affirmed Judge Thompson's order in the Alabama Ten Commandments case. You can go download the pdf file here (look for Glassroth v. Moore). More later after I read it.

[MORE LATER: A very good opinion, by Judge Carnes. Probably the first-ever use of the new legal term "invited error with a parking space" (see page 19 of the pdf file). And a strong finish, warning Chief Justice Moore not to play George Wallace games with the Court. Bad news, by the way, for Bill Pryor's nomination: a resounding defeat for the State, with a million-dollar-or-so attorneys' fee award to be paid to the Plaintiffs from the State's funds, all of which Pryor could have avoided by an appropriate exercise of his authority as the State's highest legal officer.]

I have this theory that the blogger "Andrew Sullivan" is actually a fictional creation, designed and nurtured over a period of years by persons unknown after the former journalist Andrew Sullivan somehow disappeared -- and that the purpose of the blogger-"AS" is to lead up to a stunning announcement in Summer 2004 that all AS-following "Eagles" should vote for the Democratic Presidential nominee instead of their former hero President Bush. It will be a great finale to a years-long performance piece: after years of trying to defend the indefensible, he will loudly admit that it's impossible. This will make a few thousand "Eagle" heads explode, a few thousand Eagles stay home from the polls in confusion, and a few thousand actually vote for the Democratic candidate. You can see him starting to move into Act II now, as he tells the Eagles that Bill Pryor's nomination is atrocious. I know that I should not be unveiling the deception, but fortunately very few people read my site.

In case any entity decides that this constitutes a communication about my services, let me point out that:
No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.